Plant variety right

22/1/2019 | Whether a plant variety is protected is probably one of the most important matters you have to ascertain before you can start using a particular plant variety. You are not allowed to grow or sell protected plant varieties without reason.

The holder of the plant variety right has the exclusive right to grow, offer for sale, sell or in any other way market, import and export from the area where the protection exists and store the plant variety for one of the abovementioned purposes for as long as the protection applies.

But how do you find out whether or not a plant variety is protected? And, more importantly: in which area is the plant variety protected? If a variety is only protected in the United States, you are generally free to use it in the Netherlands, for example, as it would be an unprotected variety here. All of this information is available in the UPOV database.

UPOV stands for the 'International Union for the Protection of New Varieties of Plants'. The organisation was established by the International Convention for the Protection of New Varieties of Plants, to which 74 countries are party. This means that these 74 countries have implemented plant variety rights in their territories by adopting one of the UPOV conventions. The UPOV has a database which contains information from its 74 members. If a plant variety right has been applied for or granted in the EU, for instance, the UPOV database is updated accordingly.

It is difficult to say how complete the database is. Not all countries are as meticulous in submitting new information. So, it might happen that a plant variety is in fact protected, but that the country concerned has not (or not yet) submitted this information to the UPOV. Alternatively, the UPOV database might not have been updated with the latest applications yet. While the database may give you some understanding, it is not necessarily complete. Generally speaking, the EU, Japan and the United States are precise in submitting information, but it is not exhaustive. Still, a search through the UPOV database is generally a good start.

The same applies to the names of plant varieties. You might know a variety under a commercial name, while its denomination name is entirely different. This happens quite often, where a denomination name is a code and the commercial name is a 'nice' name. You can search the UPOV database for denomination names, but not for commercial names. This may also be the reason why certain varieties cannot be found.

Breeders are supposed to know of all of their varieties where and when they are protected. If you need precise information, it is therefore recommended to contact the breeder, either by registered letter or in another way.

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